Williams v. United States of America, The
Filing
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MEMORANDUM OPINION AND ORDER: As further set out in order, Petitioner's motion to vacate is GRANTED, the sentence from his criminal action, 4:10-cr-393-AKK-JEO, is VACATED, and Petitioner is due to be resentenced pursuant to the Fair Sentencing Act of 2010 on October 31, 2012 at 2:15pm. Signed by Judge Abdul K Kallon on 10/05/12. (CVA)
FILED
2012 Oct-05 PM 03:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
TIMOTHY MORRIS
WILLIAMS,
Petitioner,
v.
THE UNITED STATES OF
AMERICA,
Respondent.
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Civil Action Number
4:12-cv-8020-AKK
MEMORANDUM OPINION AND ORDER
Petitioner Timothy Morris Williams (“Petitioner”), a federal prisoner, seeks
to have his sentence vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255.
Doc. 1. Petitioner was convicted in this court on January 5, 2011, pursuant to his
plea of guilty to one count of conspiracy to distribute and possess with intent to
distribute cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A) (Count I), and two count of distribution of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and (B) (Counts 2 and 3). Following
this guilty plea, the court sentenced Petitioner, on April 19, 2011, to a term of
imprisonment for 216-months and a $300.00 assessment fee, followed by a 60month term of supervised release.
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Petitioner did not file any direct appeals but, instead, alleges that his “prior
convictions did not rise to the level of felony for enhancement purposes,” doc. 1 at
15, and asks this court to vacate his sentence under §2255 and remand him “for resentencing without the erroneous enhancement.” Id. In its response, the United
States of America (the “Government”) asserts that Petitioner waived his right to
file a petition under § 2255 in his plea agreement, but concedes that the court
should have sentenced Petitioner in accordance with the Fair Sentencing Act
(“FSA”).1 Doc. 5 at 1. The Government further contends that it will not invoke
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Under the Anti-Drug Abuse Act (1986 Drug Act), the 5- and 10-year mandatory
minimum prison terms for federal drug crimes reflected a 100-to-1 disparity between
the amounts of crack cocaine and powder cocaine needed to trigger the minimums.
Thus, the 5-year minimum was triggered by a conviction for possessing with intent
to distribute 5 grams of crack cocaine but 500 grams of powder, and the 10-year
minimum was triggered by a conviction for possessing with intent to distribute 50
grams of crack but 5,000 grams of powder. The United States Sentencing
Commission – which is charged under the Sentencing Reform Act of 1984 with
writing the Federal Sentencing Guidelines – incorporated the 1986 Drug Act’s 100-1
disparity into the Guidelines because it believed that doing so was the best way to
keep similar drug-trafficking sentences proportional, thereby satisfying the Sentencing
Reform Act’s basic proportionality objective. The Fair Sentencing Act, which took
effect on August 3, 2010, reduced the disparity to 18-to-1, lowering mandatory
minimums applicable to many crack offenders, by increasing the amount of crack
needed to trigger the 5-year minimum from 5 to 28 grams and the amount for the 10year minimum from 50 to 280 grams, while leaving the powder cocain amounts intact.
It also directed the Sentencing Commission to make conforming amendments to the
Guidelines “as soon as practicable” (but no later than 90 days after the Fair Sentencing
Act’s effective date). The new amendments became effective on November 1, 2010.
Dorsey v. United States, 132 S. Ct. 2321, 2323, No. 11-5683, 2012 WL 2344463 at *1 (June
21, 2012).
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the waiver or assert a procedural default if Petitioner amended his current petition
to encompass a claim of improper sentencing under the FSA. Id. Petitioner, in his
reply, stated that he “would respectfully request that this amendment be allowed.”
Doc. 7 at 1. The court, thus, liberally construes Petitioner’s pleading, as it must
for pro se parties, as an amendment to his original petition to include a claim
under the FSA. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
Petitioner asserts initially that the court erroneously enhanced his sentence
because “Petitioners prior convictions does not rise to the level of serious drug
offenses. Suspended sentences and custodial sentences MUST be viewed
differently[.][sic]” Doc. 1 at 15. This argument, however, is futile in light of the
fact that Petitioner expressly waived his right to such a petition in his plea
agreement. Specifically, the plea agreement states that
In consideration of the recommended disposition of this case, I, Timothy
Morris Williams, hereby waive and give up my right to appeal my
conviction and/or sentence in this case, as well as any fines, restitution,
and forfeiture orders, the court might interpose. Further, I waive and
give up the right to challenge my conviction and/or sentence, any fines,
restitution, forfeiture orders imposed or the manner in which my
conviction and/or sentence, any fines, restitution, and forfeiture orders
were determined in any post-conviction proceeding, including, but not
limited to, a motion brought under 28 U.S.C. § 2255.
Doc. 5-1 at 10. A waiver of a right to appeal a sentence, such as the one in
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Petitioner’s plea agreement, is enforceable so long as the Petitioner entered into it
knowingly and voluntarily. United States v. Bushert, 997 F.2d 1343, 1350 (11th
Cir. 1993). For the waiver to be considered knowing and voluntary, “the . . . court
must have specifically discussed the sentence appeal waiver with the [Petitioner]
during the Rule 11 hearing.” Id. at 50-51. In this case, the court discussed the
appeal waiver contained in Petitioner’s plea agreement at the change of plea
hearing held on January 5, 2011:
MS. BURRELL: . . . Your Honor, also, if you will notice on pages 10,
11, and 12 of this plea agreement, the defendant has agreed to waive
certain rights to appeal.
THE COURT: Thank you.
Mr. Williams, why don’t you get the plea agreement from your
lawyer and take a look at it. It’s an 18-page document, and in the
bottom right-hand corner of it throughout the document are the initials
TW. Again, those are your initials; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: And did you write them on this document?
THE DEFENDANT: Yes, sir.
...
THE COURT: And the signature there is under Section 6 of this
agreement which Ms. Burrell mentioned earlier. This is you
acknowledging that you’re waiving your rights to appeal or to seek
postconviction relief and that the only reservation that you are making
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is the right to challenge any sentence that the Court impose [sic] that
exceeds the applicable statutory maximums that I went over with you
earlier or any sentence imposed that exceeds the sentencing guideline
ranges as determined by the Court at the time the sentence is imposed.
You acknowledge and recognize that except for those two limited
situation, you’re waiving your right to appeal or to seek any
postconviction relief; is that correct?
THE DEFENDANT: Yes, sir.
...
THE COURT: And does this plea agreement set forth everything that
you’re aware of that you’re relying on by way of a plea agreement?
THE DEFENDANT: Yes, sir.
THE COURT: And you did in fact sign the plea agreement?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions regarding the meaning of the
agreement or how it might operate?
THE DEFENDANT: No, sir.
Doc. 5-2 at 14-15, 17. This colloquy by the court demonstrates that the court fully
discussed the waiver with Petitioner and, thus, his waiver is enforceable as
knowing and voluntary under Bushert. Accordingly, Petitioner’s § 2255 petition,
on the grounds of purported inappropriate sentence enhancement, is DENIED.
Petitioner’s amended petition asserts additionally that the court must vacate
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his sentence because he was not sentenced under the FSA. Although the conduct
leading to Petitioner’s conviction occurred in June and July of 2010, see Doc. 5-1
at 3-5, prior to the August 3, 2010 effective date of the FSA, the Supreme Court
recently held that “Congress intended the Fair Sentencing Act’s new, lower
mandatory minimums to apply to the post-Act sentencing of pre-Act offenders.”
Dorsey v. United States, No. 11-5683, 2012 WL 2344463 at *14 (June 21, 2012).
Thus, because the court sentenced Petitioner on April 19, 2011, after the Act’s
effective date, it is clear that Petitioner is due to be resentenced under the FSA.
Accordingly, Petitioner’s motion to vacate is GRANTED, the sentence
from his criminal action, 4:10-cr-393-AKK-JEO, is VACATED, and Petitioner is
due to be resentenced pursuant to the Fair Sentencing Act of 2010 on October 31,
2012 at 2:15pm.
DONE this 5th day of October, 2012.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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